Alberto Gonzalez' War On The Judiciary

Shame on Attorney General Alberto Gonzalez. Just days after joining the chorus of criticism of Charles Stimson, deputy assistant defense secretary for detainee affairs, for suggesting that the nation's top law firms should not be representing Guantanamo Bay detainees on a pro bono basis, the Attorney General launched an attack on federal judges for insisting that, even in times of terror, the administration is subject to the Constitution and laws.

Talk about hypocrisy. Talk about sending the wrong message.

Last week, on the fifth anniversary of the opening of Guantanamo, Mr. Stimson attacked the lawyers — and the best of our legal tradition — in a much repeated radio interview. Mr. Stimson said he found it "shocking" that "the major law firms in this country … are out there representing detainees. … When corporate CEOs see that those firms are representing the very terrorists who hit their bottom line in 2001, those CEOs are going to make those law firms choose between representing terrorists or representing reputable firms."

The Attorney General, along with law school deans, editorialists and bar groups, lost no time in setting Mr. Stimson straight. "Good lawyers representing the detainees is the best way to ensure that justice is done in these cases."

Good lawyers are all well and good, but it takes courageous judges to actually ensure that justice is done. All good lawyers can do is argue. Judges decide. Judges need the support of the Attorney General even more than lawyers do. But Attorney General Gonzalez has refused to provide it.

Speaking before the conservative American Enterprise Institute on Wednesday, the Attorney General challenged the competence of the federal judiciary to address national security issues. "A judge will never be in the best position to know what is in the national security interests of our country," Gonzales said.

Unlike the administration, judges "don't have embassies around the world to gather up information," Gonzalez argued. "I try to imagine myself being a judge. … What do I know about what is going on in Afghanistan, what is going on in Guantanamo?"

"How are judges supposed to gather up the information, the collective wisdom of the entire executive branch ...

and make a determination as to what is in the national security interest of our country," Gonzales asked. "They're not capable of doing that."

That's not their job. Their job, as the Attorney General must surely know, is not to make the national security case, but to ensure that individual rights are not unnecessarily trampled in the name of national security.

No one denies that this country has a compelling interest in fighting terrorism and protecting our nation's security. The question that judges must decide is whether the government has narrowly tailored its programs to meet legitimate national security concerns in a way that safeguards individual rights; to ensure that "national security" doesn't become a rubber stamp for the violation of individual rights; to provide scrutiny on a case by case basis that requires the government to make judgments about individuals, not condemn entire groups because of their religious or political beliefs.

The administration has suffered a series of setbacks in terrorism cases, including cases brought by Guantanamo detainees, not because judges have second-guessed the substance of the administration's national security analysis, but because they have found that the administration failed to justify its efforts to block the applicability of the Constitution or the right of the federal judiciary to engage in any form of judicial review. Indeed, even as Gonzalez attacked the judiciary, the administration was finally bowing to growing Senate pressure and agreeing, after five years of fighting, to allow a special foreign intelligence court to review its program of warrantless surveillance of international phone conversations.

In the midst of World War II, in a famous case called Korematsu v. United States, the United States Supreme Court made the mistake of upholding what is now viewed as the flatly unconstitutional policy of interning Japanese Americans in camps. Fred Korematsu is now 85 years old. Mr. Korematsu told Professor Geoff Stone that he was "delighted" by some of the Supreme Court's more recent decisions rejecting the administration's claims based on national security: "By recognizing the overriding importance of civil liberties even in wartime, the Supreme Court has taken a critical step away from some of its more regrettable decisions of the past. Perhaps more importantly, it has learned the lesson of our own history — that especially in wartime, the nation depends on independent federal courts to guard the liberties of all and to be skeptical of claims of military necessity."

To find out more about Susan Estrich and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate website at www.creators.com.

COPYRIGHT 2007 CREATORS SYNDICATE INC.